America and Guantanamo – habeas corpus and torture

Karl Rove’s recent remarks to a cheering crowd at the University of Miami should remind us that right wing efforts tocontinue the barbarism of the Bush years will not disappear any time soon. Chelsea Isaacs recently wrote about Rove’s comments in the Miami Hurricane:

“One year from now, Gitmo won’t be closed,” Rove said. “If it is, there will be an uproar in the U.S. about where to put these people.” Interrogation tactics used by the CIA during Bush’s term in office were not torturous, Rove said, but he did not deny that the CIA strongly pressed terrorists for vital information. “You bet we squeeze them for information,” Rove said. “If we hadn’t, those same terrorists could have executed their plans to kill, and (people) would be asking why Bush didn’t protect American soldiers’ lives.”

Rove’s statement that the Bush administration didn’t use torture is a flat out lie. Torture was not only a routine occurrence during the Bush years, but it was aggressively encouraged by George Bush and Dick Cheney themselves, as meticulously detailed by Philippe Sands in “Torture Team – Rumsfeld’s Memo and the Betrayal of American Values”. Secondly, there is no evidence whatsoever that “squeezing them for information”, as Rove puts it, contributed one iota to the safety of Americans, and lots of evidence that it did just the opposite. And thirdly, this whole speech is the very antithesis of the ideals on which our country was founded.

The denial of habeas corpus is anti-American in the extreme

In some ways it is unfortunate that Guantanamo Bay has taken on such symbolic significance, by both the right and the left, that the more basic issues have been somewhat obscured. The more fundamental issues are the denial of habeas corpus and the torture that has characterized our treatment of prisoners at Guantanamo Bay. But the Bush administration treated its other “War on Terror” prisoners in much the same way that it treated those at Gitmo – so closing Gitmo won’t necessarily solve the whole problem. And by the same token, Gitmo could be legitimately kept open, as long as we treat our prisoners there humanely and in accordance with basic American ideals.

I am so sick and tired of hearing right wing anti-American barbarians whine about our “giving the terrorists special rights”, complaining that they don’t deserve any rights at all because of what they did or are trying to do to our country.

Anyone who refers to our prisoners at Guantanamo Bay as “terrorists” is either enormously ignorant, anti-American, racist, or more likely a combination of all three. Our detainees are not “terrorists” – as they have not been found guilty in a court of law of committing terrorism. The American Declaration of Independence maintains that ALL people have the “inalienable right to life, liberty and the pursuit of happiness”. The very first Article of our Constitution goes a long way towards making that right a reality, through the introduction of habeas corpus, which has been considered a foundational right of Western Civilization since the Magna Charta of 1215. According to Article I, Section 9 of our Constitution:

The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.

The writ of habeas corpus is the most basic American right because without it there can be no other rights. Eugene Jarecki explains this in “The American Way of War”:

Habeas corpus is a catchall for a body of fundamental legal principles that protect the rights of the individual against wrongful prosecution and detention by the state. So basic is habeas corpus to American law that it is codified in Article I of the Constitution, predating even the freedoms of speech, religion, and assembly…

Thus, anyone who, in the process of making a political argument, refers to uncharged, un-convicted people as “terrorists”, or gives them any other designation denoting a serious crime, is anti-American in the truest sense of the term. How can a person who does not believe in the most fundamental of American rights consider himself an American in spirit? That person may technically be American by birth or by some other legal process. But if you don’t believe in the most basic of human rights that the idea of the United States of America was founded upon, then in what other than the most narrow technical sense are you an American?

The denial of habeas corpus is often or usually racist

It is no coincidence that the vast majority of our detainees at Gitmo and elsewhere are of darker skin and practice a different religion than most Americans. Clearly, it was believed by Bush administration officials who designed this barbaric system that many or most Americans would be more likely to accept it by virtue of the fact that the victims are different than most of us. And they were correct in that belief.

On what other basis do those who so casually refer to our victims as “terrorists” do so? No evidence of terrorism has been presented against the vast majority of them. Nor have the vast majority of them even been charged with terrorism. And many of them have been captured and turned in to us by bounty hunters. They are merely assumed to be terrorists because George Bush and Dick Cheney said so and because they look different than most of us and practice a different religion.

A brief history of Bush administration attempts to deny habeas corpus

George Bush determined from the very beginning of his “War on Terror” that his prisoners would have no habeas corpus or any other rights.

Hamdi v. Rumsfeld
The first test in the U.S. Supreme Court of the Bush administration’s usurpation of our Constitution came in the Hamdi v. Rumsfeldcase on June 28, 2004. Eight of the nine justices agreed that the Executive Branch does not have the right to indefinitely hold a U.S. citizen without basic due process protections. Explaining the decision, Justice O’Connor, writing for the majority, said that “… We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the nation’s citizens.”

What this meant was that now the Bush administration had to either provide Hamdi with access to a lawyer and some sort of hearing on his case or else release him. Faced with that choice, three months later it decided to release him back to Saudi Arabia. Deliah Lithwick commented on the absurdity of the situation:

So the Bush administration’s decision to release Hamdi is stunning, given that only months ago he was so dangerous that the government insisted in front of the U.S. Supreme Court and the world that he could reasonably be locked up for all time, without a trial or criminal charges….

Rumsfeld v. Padilla
The next major test was Rumsfeld v. Padilla. The Bush administration initially won the case in the 4th Circuit Court of Appeals in September, 2005. But when Padilla’s lawyers appealed the case to the U.S. Supreme Court, the Bush administration abruptly made the case moot by rescinding Padilla’s “enemy combatant” status and agreeing to prosecute him in a civilian court. But the charges had nothing to do with the original allegations about plots to explode a “dirty bomb” on U.S. soil. Rather the new charges were “providing – and conspiring to provide – material support to terrorists, and conspiring to murder individuals who are overseas.”

The principle was the same as in Hamdi v. Rumsfeld. After rationalizing the detention and torture of a man for several years on a bogus excuse, rather than risk having the bogus excuse revealed, they just dropped the charges. Even the right wing judge, J. Michael Luttig, who ruled for the Bush administration in the 4th Circuit Court of Appeals decision, was incensed. Charlie Savage, in his book, “Takeover: The Return of the Imperial Presidency and the Subversion of American Democracy”, describes Luttig’s reaction:

Luttig – one of the most conservative and executive power-friendly judges on the federal bench – accused the Bush-Cheney administration of manipulating the judicial process to make sure that the Supreme Court would have no opportunity to evaluate the precedent that Luttig himself had just written. The Padilla indictment, he said, raised serious questions about the credibility of the government’s statements on which the judge had relied when crafting that precedent, and “left the impression that Padilla may have been held for all these years, even if justifiably, by mistake”.

Hamden v. Rumsfeld
The Hamden v. Rumsfeld decision of the U.S. Supreme Court was about as definitive as a legal decision can be. It even went so far as to accuse the Bush administration of war crimes. In that decision, Justice Stevens, speaking for the majority, explained that the petitioner Hamdan was “entitled to the full protection of the Geneva Convention”, and that the “military commission convened to try him was established in violation of both the Universal Code of Military Justice and Common Article 3 of the Third Geneva Convention”. Justice Kennedy further elaborated on the Geneva Convention that the USSC determined the Bush administration to have violated:

The provision is part of a treaty the United States has ratified and thus accepted as binding law… moreover, violations of Common Article 3 are considered “war crimes,” punishable as federal offenses…

The Military Commissions Act and its overturn by the U.S. Supreme Court
Consequently the Bush administration pushed through Congress the Military Commissions Act, in an attempt to ensure that detainees would have as few rights as possible. However, on June 12, 2008, the USSC determined that this law too was not Constitutional, primarily because the Act was not sufficient to restore habeas corpus:

Security subsists, too, in fidelity to freedom’s first principles. Chief among these are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to separation of powers. . . .

The laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system, they are reconciled within the framework of law. The Framers decided that habeas corpus, a right of first importance, must be a part of that framework, part of that law.

The reality of life without habeas corpus

Anthony D. Romero, the executive director of the American Civil Liberties Union, described the bottom line of the Bush detention and torture system. It allowed the Bush administration to:

indefinitely hold people without charge, take away protections against horrific abuse, put people on trial based on hearsay evidence, authorize trials that can sentence people to death based on testimony literally beaten out of witnesses, and slam shut the courthouse door for habeas petition.

In September 2006, then Senator Obama went into more detail about the Bush administration’s detainee system as he gave a great speech in favor of a habeas corpus amendment to the Military Commissions Act, on the floor of the U.S. Senate:

A few years ago… I spoke about why I love this country, why I love America, and what I believe sets this country apart from so many other nations in so many areas. I said “That is the true genius of America – that we can say what we think, write what we think, without hearing a sudden knock on the door…” Without hearing a sudden knock on the door. I bring this up because what is at stake in this bill, and in the amendment that is currently being debated, is the right, in some sense, for people who hear that knock on the door and are placed in detention because the Government suspects them of terrorist activity to effectively challenge their detention by our Government.

Fortunately, the Supreme Court in Hamden ensured that some meaningful review would take place. But in the absence of Senator Specter’s amendment that is currently pending, we will essentially be going back to the same situation as if the Supreme Court had never ruled in Hamden…

Now, I think it is important for all of us to understand exactly the procedures that are currently provided for under the Combatant Status Review Tribunals (CSRTs). I have actually read a few of the transcripts of proceedings under the CSRT. And I can tell you that oftentimes they provide detainees no meaningful recourse if the Government has the wrong guy.

Essentially, reading these transcripts, they proceed as follows: The Government says: You are a member of the Taliban. And the detainee will say: No, I’m not. And then…There is no evidence that the detainee can offer to rebut the Government’s charge…. Even if there is evidence that he was not involved in any terrorist activity, he may not have any mechanism to introduce that evidence into the hearing…

I would like somebody in this Chamber, somebody in this Government, to tell me why this is necessary. I do not want to hear that this is a new world and we face a new kind of enemy. I know that…. But as a parent, I can also imagine the terror I would feel if one of my family members were rounded up in the middle of the night and sent to Guantanamo without even getting one chance to ask why they were being held and being able to prove their innocence. This is not just an entirely fictional scenario, by the way. We have already had reports…

Torture of the innocent

If the principle of “innocent until proven guilty” isn’t enough reason to refrain from labeling uncharged and un-convicted people as “terrorists”, there is plenty of empirical evidence that many, if not the great majority of them are in fact not terrorists.

An investigation of the Abu Ghraib prison scandal concluded that “A lack of proper screening meant that many innocent Iraqis were being detained (in some cases indefinitely) and that 60% of civilian prisoners at Abu Ghraib were deemed not to be a threat to society”; The International Red Cross said that between 70 percent and 90 percent of the persons deprived of their liberty in Iraq had been arrested by mistake; a study of our Guantanamo Bay detainees, using our government’s own records, found that 60% of our detainees at Guantanamo were thrown into prison for an indefinite period of time without charges or trial merely because they were claimed to be “associated with” a group or groups that our government asserts to be a terrorist organization (only 8% were deemed to be associated with al Qaeda), and; a CIA intelligence analyst who was summoned to Guantanamo Bay to discover why the CIA was able to obtain so little useful information from its detainees:

concluded that an estimated one third of the prison camp’s population of more than 600 captives… had no connection to terrorism whatsoever. If the intelligence haul was meager, his findings suggested, one reason was that many of the detainees knew little or nothing… Many, he felt sure, “were just caught in a dragnet. They were not fighters… They should not have been there…. By imprisoning innocent Muslims indefinitely, outside the reach of any legal review”, he said, “I thought we were going to lose a whole damn generation” in the Arab world… Guantanamo was making the world more dangerous…”

In summary

There is no legitimate excuse for arguing that so-called “illegal enemy combatants” shouldn’t have the most fundamental of American and human rights because, as “terrorists” they don’t deserve any rights. We have no right to label them “terrorists” until they have been judged to be so in a fair trial. Anyone who doesn’t understand that principle doesn’t understand the most basic ideas on which our nation was founded. Or, alternatively, such people may be so blinded by racial or religious hatred that they can’t think straight.

Such people are anti-American in the truest sense of the word. Then Senator Barack Obama said as much in his great Senate speech of 2006, excerpted in this post – though he said it in politically non-inflammatory terms in order not to derail his political career. He said he loves this country, but… Then he spoke of what our country was becoming. His reference to the “sudden knock on the door” implied that we were in the process of becoming a totalitarian state if Congress passed Bush’s bill as it then stood (which it pretty much did). He said that passing the bill as it then stood would be a refutation of our own Supreme Court – as if we had no courts to maintain the rule of law in our country. He described the farce of the Bush/Cheney Military Commissions. And he spoke of the terror that he would feel if this system was ever applied to a member of his own family – In other words, we are a terrorist country.

Some will object to my calling this system anti-American, on the basis that our country was founded in slavery. They will say that the so-called ideals on which our country was founded were hypocritical because of that. But that reasoning ignores the fact that it was not possible for those who were against slavery to end it at that time. The ideals were felt deeply by many of our Founders, and it was right to incorporate them into our Declaration and our Constitution. They pointed the way to a better nation. We have fallen well short of those ideals throughout most of our history, but at least we have usually made progress towards them.

However, for more than seven years the Bush administration worked to destroy the most basic rights promised to the American people in their Declaration of Independence and guaranteed to us in our Constitution. They worked to destroy the very foundation on which our country was founded. President Obama has quite a job in front of him – not only in restoring the fundamental rights we’ve lost over the past 8 years, but in holding those who violated them accountable for their actions.

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